KEY TAKEAWAYS
Know:
- the relevant professional standards
- applicable mandatory reporting obligations
Consider:
- consent to interview minors
- the need for support persons or other cultural advisors in interviews
- the suitability and privacy of interview locations
Manage:
- real and perceived conflicts of interest between witnesses, the complainant and respondent
- confidentiality by limiting the number of witnesses interviewed and de-identifying the investigation report
Schools – public and private – are not immune from controversies related to poorly behaving leaders, teachers, parents or students. As institutions entrusted to educate the nation’s 4 million children, they are subject to high community expectations and sometimes intense public scrutiny.
While the type of alleged misconduct in schools – such as a harassment, bullying and discrimination – is often similar in nature to other workplaces, there are several additional factors, unique to the education sector, to consider before commencing a workplace investigation into a complaint.
In this article, we identify potential issues that may emerge during a school investigation and key considerations and tips for investigators.
Professional standards
Australian legislation recognises that teachers hold a unique position of trust; and accordingly, their expected standard of behaviour is high.
Investigators therefore need to be aware of the relevant standards of conduct expected of teachers (and other staff) in the jurisdiction(s) relevant to their investigation. These standards or Codes of Conduct often derive from the relevant state or territory Education Department; however, may also derive from regulatory bodies (such as the Queensland College of Teachers or the NSW Education Standards Authority), and private sector policies.
- TIP: Check your state or territory’s relevant standards – they can help identify potential wrongdoing and help in drafting allegations. For example, in Queensland, see the Code of Conduct for the Queensland Public Sector; the Department of Education’s Standard of Practice; and the Queensland College of Teachers’ Professional Boundaries: A Guideline for Queensland Teachers.
Mandatory reporting
Each Australian state and territory has its own mandatory reporting laws. This legislation requires certain professionals to report known or suspected cases of child abuse and neglect to government authorities – and typically, this includes teachers. Penalties for failure to comply are serious and can include imprisonment.
- TIP: Become familiar with the mandatory reporting requirements in your state or territory.
Witnesses
Witnesses may include minors, students with additional identified needs, Indigenous students and non-employee witnesses such as parents. Investigators will need to give careful consideration to the needs and sensitivities of each witness; and prepare for interviews accordingly.
- TIP: Investigator’s may wish to consider the following:
- obtaining consent: this is required to interview students who are minors.
- ensuring suitable support persons: ensure minors are accompanied by a parent or suitable support person at interview.
- physical location and environment: consider if the physical environment and location for your interview is suitable for your witness and for maintaining confidentiality. For students, give careful consideration to their age, developmental, cultural and other identified needs. Consider offering additional supports during the interview (such as a cultural representative, or physical aides); and keep the duration of the interview to a minimum.
Stakeholders
Schools are inherently complex environments, often involving highly engaged parents and active communities. It is important for investigators to keep in mind that this dynamic presents an added layer of stakeholder management and sensitivity to investigations, particularly where parent witnesses are involved.
- TIP: Carefully consider the probative value of each potential witness and staging witness interviews to avoid involving additional witnesses if not required. Ensure witness interviews are held in confidential locations.
Conflicts of interest
Investigators need to be live to the unique conflicts of interest that arise in a school setting. Actual and / or perceived conflicts can have a significant bearing on the reliability of witness evidence and on an investigator’s treatment of the evidence.
- TIP: Consider the witness’s personal and professional relationship(s) with the complainant, respondent and other witnesses. If the witness is a student, obtain a list of the staff involved in teaching or supporting that student. If the witness is a parent, ask for the names of the teachers / staff who teach their child (or children).
Privacy & confidentiality
While confidentiality is critical to all workplace investigations, an investigation in an educational setting imposes additional privacy obligations on an investigator. Investigators need to be mindful that they may be exposed to personal information and if so, they will be required to treat that information in a manner consistent with relevant workplace policies.
- TIP: Consider de-identifying your investigation report to remove the name(s) of any students involved in the investigation. Also be mindful of redacting any documentary evidence attached to your investigation report.
More information
Q Workplace Solutions’ highly experienced team of legally qualified investigators, who are trusted by top law firms, ASX-listed companies and public and private employers to investigate highly sensitive and complex matters, have documented their best practice approaches in the recognised professional bible, Workplace Investigations: Principles and Practice (2nd Edition).
They also run practical in-person and online structured workshops and bespoke training sessions that unpack how to conduct an effective workplace investigation as well as how to approach and conduct investigations into sexual harassment and whistleblower complaints.
